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Christensen v. Royal School District No. 16012/8/2005
Concurring: Faith Ireland, Bobbe J Bridge, Charles W. Johnson, Susan Owens, Tom Chambers, Mary Fairhurst
Dissenting: Barbara A. Madsen, Richard B. Sanders
En Banc
The United States District Court for the Eastern District of Washington has certified the following question to this court: May a 13 year old victim of sexual abuse by her teacher on school premises, who brings a negligence action against the school district and her principal for failure to supervise or for negligent hiring of the teacher, have contributory fault assessed against her under the Washington Tort Reform Act for her participation in the relationship?
Order of Certification to the Washington Supreme Court (Certification Order) at 1. We answer 'no' to the question, concluding that, as a matter of law, a child under the age of 16 may not have contributory fault assessed against her for her participation in a relationship such as that posed in the question. This is because she lacks the capacity to consent and is under no legal duty to protect herself from the sexual abuse.
I.
The stipulated facts, as set forth in the Certification Order, indicate that Leslie Christensen was born on July 7, 1987. She is the daughter of Gary and Kim Christensen. In early 2001, Leslie was 13 years of age and a student in the eighth grade at the Royal School District's Royal Middle School. During that school year, the District employed 26-year-old Steven Diaz as a teacher at Royal Middle School. The principal of Royal Middle School at that time was Preston Andersen.
On February 12, 13, 22, and March 30, 2001, Diaz engaged in sexual activity with Leslie, who was one of his students. This activity occurred in Diaz's classroom. According to Diaz, Leslie voluntarily participated in a relationship with him and in the aforementioned activity. Leslie and her parents brought suit against Diaz, the Royal School District (the District), and Principal Andersen in the United States District Court for the Eastern District of Washington. In their complaint, they claimed that Diaz sexually abused Leslie. Damages were also sought against the District and Andersen based on the allegation that the District and its principal, Andersen, were negligent in hiring and supervising Diaz. In a responsive pleading, the District and Andersen asserted an affirmative defense that Leslie's voluntary participation in the sexual relationship with Diaz constituted contributory fault under the tort reform act, chapter 4.22 RCW. Leslie moved for partial summary judgment on this issue, seeking to strike the affirmative defense. The trial court deferred ruling on the motion pending an answer from this court to the certified question set forth above.
II.
The certified question presents an issue of first impression. The parties assert numerous arguments in support of the answer they favor to the certified question. Because we answer the question on narrow grounds, we need not address all of their arguments.
The Washington Legislature enacted the tort reform act of 1981 in order to 'create a fairer and more equitable distribution of liability among parties at fault.' Laws of 1981, ch. 27, sec. 1 (codified at ch. 4.22 RCW). The act calls for the finder of fact to compare the respective fault of the claimant and defendant. RCW 4.22.005. Although the act provides that contributory fault does not bar recovery, as was the case prior to the act's adoption in 1981, contributory 'fault' on the part of a claimant diminishes proportionally the amount of damages that the claimant can recover. Under the act, 'fault' is defined as
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